DEC Regulation Flaws

Major Flaws in the DEC’s Regulations for Gas Drilling

The New York State Department of Environmental Conservation (DEC) issued their Draft Supplemental Generic Environmental Impact Statement (dSGEIS) in early September 2011. These are the permit conditions under which they propose to allow horizontal gas drilling using hydraulic fracturing “fracking” in New York State. This puts New York on a course to start this type of drilling by early Spring 2012.

There are major flaws in the published permit conditions and they do not address many of the issues that are critical to keeping New Yorkers safe. The State government knows the dangers of gas drilling which is why New York State comptroller Thomas P. DiNapoli is moving to create an industry-supported fund to pay for potential environmental damage caused by hydraulic fracturing and other forms of gas drilling. One of the only explanations for Governor Cuomo’s rush to make this happen is that he has decided to take a calculated risk with our health and the environment.

Catskill Mountainkeeper does not think that this is a risk that should be taken.

Below is a summary of some of the major flaws in the document:

1. No analysis of fracking’s true costs

The socioeconomic impact analysis provided to the DEC omits critical information about fracking’s impact on communities including the increased burden on local infrastructure to maintain the roads and bridges that will be damaged by heavy truck traffic; the increased costs for emergency services to deal with industrial accidents; the increased cost to law enforcement to deal with increased crime that traditionally follows the influx of out-of-state workers; the spikes in rental prices that will hurt local residents; the lowering of property values which will not only hurt homeowners but will lower tax assessments and decrease the income coming into municipalities; the problems homeowners will have trying to sell their homes; the negative effect on existing industries such as tourism, outdoor recreation and agriculture, and more. Assembly Member Michelle Schimel, who questioned Martens closely about lack of any recommendations or plans for funding & training first responders, emergency rooms, and hospitals. She also talked about the push-down of public costs to the local level. (Economic costs to NY State)

2. No adequate assessment of the serious health impacts of fracking

The DEC has failed to include an analysis of public health impacts or to meaningfully incorporate the Department of Health into the fracking review. This is despite the evidence of serious negative health impacts related to gas extraction (particularly to children and the elderly) that have been documented in other states. On October 6, 2011, over 250 health professionals including the American Academy of Pediatrics petitioned Governor Cuomo to request an independent school of public health to conduct Health Impact Analysis for fracking.

3. Failure to ban any chemicals

The DEC did not ban any of the toxic chemicals used in fracking fluid, even those known to be serious human and animal carcinogens. Nor has there been any study of the cumulative effect of exposure to the hundreds of dangerous chemicals used in the fracking process that could be discharged simultaneously in wastewater streams, if fracking is permitted. While the proposed public disclosure component has been strengthened, telling New Yorkers what toxic chemicals will be used is not the same as protecting them from negative health impacts.

4. Failure to look at fracking comprehensively

Governor Cuomo has failed to approach gas development in a comprehensive manner. The industry would be overseen by several state agencies, including the Public Service Commission, Department of Agriculture and Markets, Department of Health and others. There is no single agency with a clear mandate to protect the public. Governor Cuomo is the only person who has the power to coordinate multiple agencies’ efforts and protect New Yorkers from the full array of impacts from gas production and infrastructure development and he seems unmoved by the risks to New Yorker’s health and the environment.

5. Failure to analyze the cumulative impact of a full build out of gas wells

References to how an area would be affected by the cumulative impact of many, many wells is only addressed for some aspects of that cumulative impact but the DEC has failed to lay out a comprehensive, focused plan to review and analyze the consequences of a full build out. As proposed the DEC staff will review the well applications one at a time, in isolation. Wells are drilled as part of multiple well drilling programs – not one at a time. The DEC should be prepared to look at and understand multiple well applications – which is how the industry operates.

6. Fracking restrictions have expiration dates

Some areas are being put off limits to drilling, but many of the restrictions have sunset dates. Some protective buffers only call for site-specific individual environmental review, rather than clear restrictions. Drilling in potable water supplies is still allowed.

7. Fracking waste still not classified as hazardous

Despite the fact that many of the chemicals used in fracking are classified as hazardous before they are pumped into the ground, the waste from fracking that contains these same chemicals is NOT classified as hazardous.

8. No plan for disposal of hazardous fracking wastes

There are no wastewater treatment plants in New York State designed to treat wastewater from high-volume fracking operations. The draft review and proposed regulations are unacceptably vague with regard to what will become of the billions of gallons of toxic waste that will be produced in New York State once these drilling operations are commenced. Open pits for storing fracking waste have not been outlawed, and the tracking of fracking waste is left up to gas industry operators.

9. Failure to protect critical drinking water infrastructure

The state proposes a buffer around New York City drinking water infrastructure that is only one-quarter as long as a typical horizontal well bore, too close to the sensitive, aging infrastructure that provides the city with drinking water. However, the buffer is not a ban, projects could be permitted by only an additional review. There are no proposed buffer requirements for Syracuse. In addition, while the draft increases buffers and setbacks from aquifers and wells, the protections are inconsistent and can be waived in some instances. All setbacks and buffers must be set to provide maximum protections that cannot be altered.

10. Failure to respect communities’ local land use and zoning laws

Home rule powers to control land use and industrial development through zoning and police powers have long been established in New York State. Governor Cuomo and the DEC must respect local laws and ordinances.

11. Inadequate and unclear rules about fracking floodplains

The DEC proposes to ban well pad development in 100-year floodplains, however, they acknowledge that the flood maps are out of date, that these maps have been unreliable in the past, and further that they will not be updated until late 2012 after permitting is proposed to begin.

12. Drilling is allowed under state-owned land

The plan does ban drilling is most state-owned land, but does not preclude gas companies from drilling under state-owned land.

13. Has ignored documented science about natural migration of methane and contaminants in drinking water

There is documented science that shows that fracturing by injecting fluids into the shale will cause conditions that make transport of contaminants from the shale to surface aquifers possible, which refutes claims by the DEC that “contaminants in the shale are isolated and cannot reach the near-surface aquifers.”

14. The Governor and the DEC are fast-tracking industrial drilling

Insufficient time has been allowed for public comment to the DEC’s plan and insufficient hearings have been scheduled. The DEC has also released the proposed rules for regulating industrial gas drilling even before completing the legally required environmental review process despite the fact that the environmental impact statement (EIS) is supposed to be finalized before the drafting of regulations is commenced.

Based on extensive study and scientific evidence, Catskill Mountainkeeper has called for a ban on fracking. We are also working within the existing regulatory process in New York to raise critical issues, widen the discussion of the impacts of drilling, and expand the options available to protect the public.